the commission by the minor of further offences.35 Parenting orders,36 which require parents to attend a counselling or guidance programme and, when necessary, comply with certain specified requirements, and parenting contracts37 form part of the current armoury of criminal courts to involve parents in the punishment of their children. Thus, by imposing financial burdens on parents or prescribing particular courses of action, criminal law, at least, is prepared to hold parents answerable to a certain extent for the criminal activities of their children. Nevertheless, such measures are seen as controversial. Some commentators have suggested that parenting orders may be seen ‘as fundamentally authoritarian, an attack on civil liberties and an extraordinary invasion by the State into family autonomy’.38 It is also unclear to what extent the courts are prepared to ignore the absence of fault by the parent.39

7.3 Finding a framework for parental responsibility in tort law

The common law’s response to parental liability is therefore limited, at least in tort law. In relation to third party victims, the courts will seek evidence of fault and, in setting the standard of care, will take account

35Powers of Criminal Courts (Sentencing) Act 2000, s. 150: duty to consider binding over of parent or guardian where offender is aged under 16. See s. 150(2): ‘The powers conferred by this section are as follows – (a) with the consent of the offender’s parent or guardian, to order the parent or guardian to enter into a recognizance to take proper care of him and exercise proper control over him; and (b) if the parent or guardian refuses consent and the court considers the refusal unreasonable, to order the parent or guardian to pay a fine not exceeding £1,000; and where the court has passed on the offender a sentence which consists of or includes a youth rehabilitation order, it may include in the recognizance a provision that the offender’s parent or guardian ensure that the offender complies with the requirements of that sentence.’

36Crime and Disorder Act 1998, ss. 8 and 9. There is a duty to consider making such an order if the child is less than 16 and convicted of an offence and give reasons if this option is not chosen: s. 9(1). Such orders are consistent with Article 8, European Convention on Human Rights: R (on the application of M) v Inner London Crown Court [2003] EWHC 301, [2003] 1 FLR 994.

37These involve agreements between parents and the local education authority or the governing body of a relevant school in case of exclusion or truancy or youth offending teams in case of criminal conduct or anti-social behaviour by which the parent states his agreement to comply with such requirements as may be specified in the contract. See Anti-Social Behaviour Act 2003 in case of exclusion from school or truancy (s. 19) or arising out of criminal conduct or anti-social behaviour (s. 25). Sections 20 and 26 deal with parenting orders in such circumstances.

38Bainham, Children: the modern law, p. 640.

39See R v JJB [2004] EWCA Civ 14, [2004] 2 Cr App Rev (S) 41 on the application of s. 137 of the 2000 Act. See also TA v DPP [1997] 1 Cr App R (S) 1.

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of the difficulties of bringing up children whilst running a house and, presumably in more recent times, with both parents working. Although the cases depict a somewhat stereotypical picture of childcare – a harassed mother plus screaming child – it is, in practice, difficult to bring a successful case against a parent. It is hardly surprising that the majority of claims are, in reality, brought against schools, as either primarily or vicariously liable for the negligence of their teachers, or other professional bodies taking responsibility for childcare.40 Although the same lenient standard of care is often applied to the actual carer, it is far easier to identify systemic negligence as a basis for imposing liability. In Carmarthenshire CC v Lewis,41 for example, although the teacher was not liable for leaving a four-year-old boy alone, the House of Lords viewed the school’s failure to secure a gate which gave onto the public highway as negligent, thus entitling the widow of the lorry driver, who had swerved to avoid the child and was tragically killed as a result, to recover damages.

The remainder of this chapter will question why the common law has generally refrained from imposing vicarious liability on parents. One reason has already been raised – the judiciary seems to feel inadequate to judge the difficulties of parenting and has adopted a generous approach towards liability. Yet, one might question whether parents should be let off so lightly. Parenting brings with it responsibilities, together with an awareness that young children, in particular, do not appreciate the risks and dangers of life and need to be both protected against these dangers and prevented from causing injury to others. In view of the increased expectations of parents in criminal law through parenting orders and parenting contracts, is it not the time for the common law to recognise that a greater burden should lie on parents? As will be shown below, the majority of other European legal systems do not favour the approach of the common law courts. It cannot therefore simply be assumed that parents should

40Case law also indicates that other bodies may be found liable, for example, a shopkeeper in Burfitt v Kille [1939] 2 KB 743 who sold a twelve-year-old a safety-pistol and 100 blank cartridges was found liable for the injury the boy caused to his friend when firing the pistol into the air. Much will depend on the potential danger presented by the item sold: Ricketts v Erith BC [1943] 2 All ER 629 (shopkeeper not liable for selling ten-year-old boy makeshift bow and arrow).

41[1955] AC 549. See also J (a child) v North Lincolnshire CC [2000] PIQR P84, using res ipsa loquitur to assist the claimant. Also Ward v Hertfordshire CC [1969] 1 WLR 790 and Barnes v Hampshire CC [1969] 1 WLR 1563. See, generally, Clerk & Lindsell on Torts, 19th edn (London: Sweet and Maxwell, 2006), 8–174 to 8–178.

not be vicariously liable for the torts of their children. The question will be approached in two parts. First, the different models for parental responsibility in tort will be examined. Two models may be identified by which parental liability for the wrongful acts of their children is recognised.42 Secondly, the justifications for these models will be considered. When and why do we impose liability on parents and, most importantly, what are the consequences of the imposition of such liability? Does such liability amount to an attack on parental autonomy or a sensible recognition of the need to provide a satisfactory compensatory framework for the harm children may cause to innocent bystanders?

In the models outlined below, the key distinction is between systems which require fault on the part of the parent (and/or child) and those which are prepared to impose a form of strict liability on the parent. The choice between these options is inevitably based on policy and the difficult balance between parental autonomy and victim protection. The question of liability must therefore be approached with the full recognition that children not only are often incapable of appreciating risks to themselves, but are equally capable of causing injury to others. How a legal system deals with this question thus casts light on its views of corrective and distributive justice.

Model One imposes liability on the parent on the basis of fault. This produces two variants: (a) where the burden is on the claimant to establish fault in the parent’s supervision of the child; and (b) where the court presumes fault and the burden is on the parent to demonstrate that he or she has taken reasonable care to supervise the child.

Model Two imposes vicarious or strict liability on the parent. Again two variants may be identified: (a) in which the parent is held strictly liable for the torts of his or her child; and (b) in which the parent is liable for any acts of the child which harm another, subject to very limited defences such as force majeure.

Whilst it is possible to identify more subcategories of liability, those stated above represent the main approaches currently adopted in common and civil law and will be examined below in more detail, with reference to representative legal systems.

42These models may be contrasted with the slightly different formulation adopted by J.-P. Le Gall, ‘Liability for the acts of minors’ in A. Tunc (chief ed.), International encyclopedia of comparative law (Tu¨bingen: Mohr, 1983), vol. XI, Torts, ch. 3.

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7.3.1 Model One: fault-based liability – English and German law

The first variant of this model has been outlined above. Liability is based on proof of fault. Responsibility thus rests on the parent’s assumption of control over the child and a failure to exercise reasonable care in the circumstances will justify the imposition of liability.

Yet, as seen in relation to the common law, much depends on what the courts require in terms of reasonable care. The approach of the common law courts is generally quite generous. Parents are not expected to meet the standard and vigilance of a trained childcare expert and allowances are made for the challenges of the inexperienced and untrained in caring for children. Whilst it is difficult to establish clear standards due to the lack of case law and the tendency of courts to concentrate on the actual facts of the case, the judiciary does appear willing to make allowances, particularly in relation to small children and recognises that less supervision is required of older children who are expected to take greater responsibility for their own actions.

German law provides a useful contrast to the common law.43 Liability is based on fault, but with a reversed burden of proof. Parents will thus be liable unless they can prove that they were not at fault. } 832 of the German Civil Code (BGB) provides that:

(Liability arising from the duty to supervise/Haftung des Aufsichtspflichtigen)

(1)A person who is bound by law to exercise supervision over a person who needs supervision by reason of minority, or by reason of his mental or

physical condition, is bound to make compensation for any damage which the latter unlawfully44 causes to a third party. The duty to make

compensation does not arise if he fulfils his duty of supervision, or if

43See, generally, G. Bru¨ggemeier, Haftungsrecht: Struktur, Prinzipien, Schutzbereich

(Heidelburg: Springer, 2006), pp. 527–30; M. J. Schmid, ‘Die Aufsichtspflicht nach } 832, BGB’, VersR 1982, 822; and D Haberstroh, ‘Haftungsrisiko Kind – Eigenhaftung des Kindes und elterliche Aufsichtspflicht’, VersR 2000, 806.

44Liability is thus conditional on an objectively ‘unlawful’ act by the minor infringing one of the interests protected by } 823, but the child need not be personally charged with fault. Liability will be excluded in cases where the injury was caused by behaviour by the child which would not amount to wrongful if performed by an adult: G. Wagner, ‘Children as tortfeasors under German law’ in M. Martin-Casals (ed.), Children in tort law Part I: children as tortfeasors (Vienna: SpringerWienNewYork, 2006), para. 68.

the damage would have occurred notwithstanding the exercise of proper supervision.45

(2)The same responsibility attaches to a person who undertakes the supervision by contract.46

Two conditions must be satisfied. First, the person in question must be bound by law to exercise supervision over the child. }} 1626(1)47 and 1631

(1) of the BGB establish the parental right to custody which will suffice. In particular, } 1631(1) specifies that parental care (elterliche Sorge) includes the duty to supervise the child. Liability thus arises from this right, and residence with the parent is not a requirement. Secondly, the child must have caused harm to a third party. If these conditions are satisfied, the burden then falls on the parent(s) to satisfy the court that either reasonable care has been taken and the duty of supervision fulfilled or that the damage would have occurred in any event. The burden of proof is therefore placed on the parent to exonerate himself or herself from a claim for negligence.

It is interesting to note that, in practice, commentators do not feel that much hinges on this reversal of the burden of proof. Gerhard Wagner comments that:

. . . the reversal of the burden of proof provided by }832 subs.1 BGB does not really change much. Its main effect is that once the court has fixed the scope of the duty to supervise it is for the parents to prove that they did in fact take all the safety measures required. In this respect, the allocation of the burden of proof to the parents comes naturally as the victim has no access to the sphere of family life and thus lacks the relevant information. In practice, cases rarely turn on the burden of proof.48

45‘(1) Wer kraft Gesetzes zur Fu¨hrung der Aufsicht u¨ber eine Person verpflichtet ist, die wegen Minderja¨hrigkeit oder wegen ihres geistigen oder ko¨rperlichen Zustands der Beaufsichtigung bedarf, ist zum Ersatz des Schadens verpflichtet, den diese Person einem Dritten widerrechtlich zufu¨gt. Die Ersatzpflicht tritt nicht ein, wenn er seiner Aufsichtspflicht genu¨gt oder wenn der Schaden auch bei geho¨riger Aufsichtsfu¨hrung entstanden sein wu¨rde.’ Note the similarities with

} 831 (discussed in previous chapters).

46Those paid to care for children are thus expressly dealt with under the Code, although the courts have been anxious to exclude neighbours helping temporarily with childcare from such provisions: see Landsgericht Karlsruhe in [1981] VersR, 142 (143). Liability, it will be noted, is not confined to parents.

47Parental care of custody includes both care of the child (Personensorge) and care of the child’s property (Vermo¨genssorge): ‘(1) Die Eltern haben die Pflicht und das Recht, fu¨r das minderja¨hrige Kind zu sorgen (elterliche Sorge). Die elterliche Sorge umfasst die Sorge fu¨r die Person des Kindes (Personensorge) und das Vermo¨gen des Kindes (Vermo¨genssorge).’ See also } 1672 (living apart where the mother has parental custody). For guardians and carers,

see }} 1793, 1797, 1800, 1909ff, 1915.

48See Wagner, ‘Children as tortfeasors’, para. 51.

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The examples arising in the case law are similar to those arising in English law. Both systems adopt an objective standard of care, which takes account of the particular circumstances of the case and the age of the minor. The standard is that of the reasonably prudent parent in the particular situation.49 The German courts place particular emphasis on the facts of each case, examining ‘the age, disposition, characteristics, development, education and all other individual features of the minor’.50 Markesinis notes that the phraseology used is deliberately vague to permit flexibility, but that ‘it should not conceal a discernible trend in recent cases to raise the standard of care expected of modern parents’.51 A number of cases have focused on the question of the parental duty of supervision in relation to matches, due to the known attraction of children to fire (and the severe damage which can result). Case law indicates that parents should inform children of the dangers associated with playing with fire and ensure that matches are stored out of reach of the child.52 One case even suggests that a search of the child’s body may be necessary if it is believed that the child has taken the matches and has a tendency to play with them.53 In contrast, explicit orders to a child who is generally obedient and law-abiding may serve to rebut the presumption of fault.54 This suggests the existence of a more stringent approach than that which is adopted in England, giving priority to the prevention of harm rather than parental discretion to deal with problems as they deem fit.

This assumption appears to be vindicated in the ECTIL55 study of liability for damage caused by others.56 National reporters were asked, inter alia, to consider how the courts would deal with a parent who gives his thirteen-year-old child an air rifle with proper instructions on safety. On the basis of the English firearm cases examined in 7.2.2, it is

49BGH (29 May 1990) BGHZ 11, 282; BGH (26 January 1960) [1960] VersR, 355, 356; BGH (27 October 1965) [1965] VersR 48. BGHZ 111, 282, 285 ¼ NJW 1990, 2553: ‘was versta¨ndige Eltern nach vernu¨nftigen Anforderungen im konkreten Fall unternehmen mu¨ssen, um die Scha¨digung Dritter durch ihr Kind zu verhindern.’

50See RGZ 52, 73 and BGH MDR 1997, 643.

51See B. S. Markesinis, The German law of obligations, 3rd edn (Oxford: Clarendon Press, 1997), vol. II, The law of torts, p. 899.

52BGH Vers R 1983, 734 (parents of seven-year-old liable for fire child caused using easily accessible matches), BGH (28 February 1969) [1969] MDR 564; BGH (17 May 1983) [1983] NJW 2821; BGH (1 July 1986) [1987] NJW-RR 13, 14.

53BGH (1 July 1986) [1987] NJW-RR 13, 14.

54See OLG Frankfurt (28 March 2001) [2001] MDR, 752.

55European Centre of Tort and Insurance Law, based in Vienna.

56Spier (ed.), Unification of tort law.

unsurprising that the English reporter found that where the parent has given clear instructions and told the teenager not to use the weapon in the open, the parent will generally not be found liable.57 Fedke and Magnus, however, giving the German response, opine that the parent would be held liable under } 832 due to the high standard of care required for dangerous objects such as bows and arrows, catapults and air rifles.58 They note that ‘some academics go as far as to claim that dangerous objects of this kind simply do not belong in the hands of minors’.59 The English courts have refused to go this far. Different perceptions therefore exist as to what is acceptable parental behaviour. This will vary according to the social practices of each particular jurisdiction.

The main difference between English and German law lies, in fact, in the greater ability of victims to seek compensation from the child, despite the protection given in } 828.60 Under } 829 (Ersatzpflicht aus Billigkeitsgru¨nden),61 the courts may impose subsidiary liability in equity on the child where the victim is unable to recover from the third party supervising the child and the child is not deprived of sufficient means for his own upkeep. This is despite the fact that he is not liable in law. This provision is interpreted broadly by the courts to include any circumstances where the minor would be liable but for his age, but is confined to the sum which ‘equity’ requires.

Nevertheless, both systems recognise that while parents assume responsibility for their children and are best placed to supervise and prevent their children causing harm to others, liability may only be justified on the basis of fault. In practice, much will depend on the standard of care expected of parents and the assessment by the court of each particular case. Although English law adopts a more objective approach to that of the German courts, a close reading of the cases indicates that this is not always

57Rogers, ‘Liability for damage’.

58J. Fedke and U. Magnus, ‘Liability for damage caused by others under German law’ in Spier (ed.), Unification of tort law, para. 32.

59Ibid.

60A child will not be liable in tort below the age of seven (rising to ten in traffic accidents): see } 828 BGB. For a comparative study of the imputability of fault to children, see Bru¨ggemeier, Haftungsrecht, pp. 33ff.

61‘Wer in einem der in den }} 823 bis 826 bezeichneten Fa¨lle fu¨r einen von ihm verursachten Schaden auf Grund der }} 827, 828 nicht verantwortlich ist, hat gleichwohl, sofem der Ersatz des Schadens nicht von einem aufsichtspflichtigen Dritten erlangt warden kann, den Schaden insoweit zu ersetzen, als die Billigkeit nach den Umsta¨nden, insbesondere nach den Verha¨ltnissen der Beteiligten, eine Schadloshaltung erfordert und ihm nicht die Mittel entzogen werden, deren er zum angemessenen Unterhalt sowie zur Erfu¨llung seiner gesetzlichen Unterhaltspflichten bedarf.’

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adhered to in practice.62 Fault-based liability gives flexibility and discretion to the courts to set a standard of parental care deemed appropriate in modern society.

7.3.2 Model Two: vicarious or strict liability – English, Spanish and French law

This model imposes liability without fault on the parent; the parental relationship justifying the imposition of strict liability for the harm caused by the child. It takes two forms. Liability is imposed either for the torts of the child or simply the acts of the child. This distinction may appear to be fine, but is significant in practice. Few examples exist of strict parental liability for the torts of their children. Perhaps surprisingly in view of the frequent statements that parental vicarious liability does not exist in English law,63 some instances may be found in English law. A parent will be liable if he or she authorises or ratifies the torts of the child, although, as stated in previous chapters, such liability is best described as primary, not vicarious, liability, despite the wording used by the courts.64 Genuine vicarious liability will arise where the parent employs the child and the child commits the tort in the course of his employment. The reason for such liability, however, is not the parent/ child relationship, but the employment context. No distinction is made between a child and other employees, save that the law of contract determines that, whilst a minor may enter a contract of service, it will only be binding if found to be beneficial to him.65 There is no reason why vicarious liability cannot arise on the basis of such a relationship provided, of course, that the minor is capable of committing the tort in question.

In contrast, Spain has enacted a specific provision in Article 61.3 of the Organic Act on Criminal Liability of Minors (Ley Orga´nica 5/2000, Reguladora de responsabilidad penal de los menores) which renders the parent jointly and severally liable for the torts of a child, who is younger than

62See, for example, Ricketts v Erith BC [1943] 2 All ER 629 and Gorely v Codd [1967] 1 WLR 19.

63For example, Lord Goddard CJ in Donaldson v McNiven [1952] 2 All ER 691 at 692 remarked that ‘Some people have thought that parents ought to be responsible for the torts of their children, but they are not’.

64Moon v Towers (1860) 8 CB (NS) 611, 144 ER 1306; Gray v Fisher [1922] SASR 246.

65See, for example, Clements v London & North Western Railway Co. [1894] 2 QB 482 and Slade v Metrodent [1953] 2 QB 112 (QBD). Contrast De Francesco v Barnum (1890) 45 Ch D 430: contract placed inordinate power in hands of apprentice-master, which was not for the infant’s benefit.

18 but older than 14, which amount to a crime or misdemeanour.66 Vicarious liability in this context has, however, received criticism. Martin-Casals, Ribot and Feliu comment that ‘it seems completely unreasonable to link criminal liability of the child with a strict liability regime, since more maturity of judgment in fact means that the parents have less means to control the conduct of their children’.67 Such specific provisions are unusual and resemble, to some extent, the criminal law provisions enacted in England. They also raise the same difficulties of practical implementation: can a parent really control a criminally active fifteen-year-old? Liability for other torts does not, however, rest on vicarious liability but proof of fault by the parent,68 albeit with a reversed burden of proof.69 Parents may thus avoid liability by proving that they acted with all due care to avoid the harm caused by the child. In practice, however, the application of Article 1903 Co´digo Civil espan˜ol has come to resemble quasi-strict liability.70 The courts have been reluctant to accept proof of exculpation, rendering rebuttal of the presumption of fault a ‘purely theoretical possibility’.71

The few examples of vicarious liability which exist indicate that the traditional model of vicarious liability does not lend itself easily to the parent/child relationship. The parent is usually targeted not simply because he or she has the means to fund compensation, but because it is difficult to establish tortious liability on the part of

66M. Martin-Casals, J. Ribot and J. S. Feliu, ‘Children as tortfeasors in Spanish law’ in Martin-Casals (ed.), Children in tort, para. 66.

67Ibid., para. 66, n. 80.

68Art. 1903 II Co´digo Civil espan˜ol: ‘Los padres son responsables de los dan˜os causados por los hijos que se encuentren bajo su guarda.’ (parents are responsible for the damage caused by their children who are under their guard). Parents will be liable for acts which are objectively negligent even if the child has no tortious capacity: see M. Martin Casals and J. S. Feliu, ‘Liability for damage caused by others under Spanish law’ in Spier (ed.),

Unification of tort law, para. 25.

69Art. 1903 VI, Co´digo Civil espan˜ol: ‘La responsabilidad de que trata este artı´culo cesara´ cuando las personas en ´el mencionadas prueben que emplearon toda la diligencia de un buen padre de familia para prevenir el dan˜o.’ (The liability referred to in this article shall cease when the persons mentioned in it prove that they employed all the care of a reasonable person to prevent the damage).

70See TS 17 June 1980, RAJ 1980 (1) No. 2409, p.1874; TS 10 March 1983, RAJ 1983 (1) No. 1469, p. 1128. Liability has been described as based on risk: TS 22 January 1991, RAJ 1991

(1) No. 304, p. 333.

71See C. von Bar and E. Clive (eds.), Principles, definitions and model rules of European private law: Draft Common Frame of Reference (DCFR). Full Edition (Munich: Sellier, 2009), pp. 3440–1 (hereafter DCFR).

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the minor. Here, there is a clear contrast with the employer/employee relationship, where generally no question as to the capacity of the employee to commit a tort will arise. Children, however, are problematic tortfeasors. They often lack the capacity to be sued in their own right either due to legislative restrictions on age,72 or due to practical difficulties in proving that the child satisfies the conditions of liability. For example, the child may not possess sufficient intention or foresight to establish liability for intentional torts or negligence. More fundamentally, a society might also have moral and social objections to imposing liability on children due to their age and inexperience. The French legislator overcame this obstacle in relation to mentally handicapped persons by applying an objective standard of care, which ignored their individual incapacities.73 As we will see, in relation to children, the French courts have gone further and removed any requirement of fault on behalf of the child. Such steps are controversial and represent a willingness to favour distributive justice above the demands of corrective justice. Further, they do not diminish other evidential problems, such as determining what actually happened when young witnesses are involved.

While such problems lessen as the child approaches maturity, the reality is that strict liability for the torts of children would cover only a limited number of cases and would place the question of the capacity of the child at the centre of legal discourse. Such liability would appear to be of limited utility and cumbersome. Vicarious liability in the sense used in this book would therefore not appear a desirable option for the common law.

However, whilst vicarious liability for children falters on difficulties of proving fault, it is submitted that the true choice lies between retaining fault-based liability or rendering parents strictly liable for harmful acts of their children. Here, strict liability fulfils the same goals as vicarious liability for employees’ misconduct. There is a distribution of social risk, an allocation of responsibility encouraging

72Consider, for example, } 828(1) BGB: ‘A person who has not reached the age of seven is not responsible for damage caused to another person.’ } 828(2) adds: ‘A person who has reached the age of seven but not the age of ten is not responsible for damage that he inflicts on another party in an accident involving a motor vehicle, a railway or a suspension railway. This does not apply if he intentionally caused the injury.’

73Art. 489–2, Civil Code: ‘A person who has caused damage to another when he was under the influence of a mental disorder is nonetheless liable to compensation.’ See G. Viney RTD civ. 1970.263 and J.-J. Burst JCP 1970 I 2307 No 51.

greater preventative measures and the creation of a single source of compensation. This latter situation exists in France. In 1997, the French courts, despite the wording of the Civil Code, chose to impose strict liability on parents for the acts of their children causing harm to others. The impact of this decision will now be examined.

7.3.3 Strict liability – French law after 1997

The example of French law is particularly useful in this context. In contrast to the common law system, the question of parental liability for children has received considerable attention,74 which cannot simply be explained due to express provision for such liability in the 1804 Code. As amended, Article 1384 of the Code now reads:

(4) The father and mother, in so far as they exercise ‘parental authority’, are jointly and severally liable for the damage caused by their minor children who live with them.75

(7) The above liability exists, unless the father and mother . . . prove that they could not prevent the act which gives rise to that liability.76

Prior to 1997, this provision was interpreted consistently with the second variant of Model One – fault-based liability with a reversed burden of proof. The burden was on the parents to establish that the harm was not due to a failure to take reasonable steps to look after or educate their child (faute de surveillance ou d’e´ducation).77 Liability, it was intended, would encourage fathers to take responsibility for their families and, by so doing, bring up good and virtuous French citizens.78 Until the 1980s, it was accepted that liability would be

74The literature is voluminous, but see, in particular, P.-D. Ollier, La responsabilite´ civile des pe`re et me`re. Etude critique de son re´gime le´gal (Paris: LGDJ, 1961); D. Layre´, ‘La responsabilite´ du fait du mineur’, the`se, Paris I (1983); J. Julien, La responsabilite´ civile du fait d’autrui: ruptures et continuite´s (Presses universitaires d’Aix-Marseille, 2001); M.-C. Lebreton, ‘L’enfant et la responsabilite´ civile’, the`se, Rouen (1996).

75‘Le pe`re et la me`re, en tant qu’ils exercent l’autorite´ parentale, sont solidairement responsables du dommage cause´ par leurs enfants mineurs habitant avec eux.’ As amended by the loi N

70–459 of 4 June 1970 and loi N 2002–305 of 4 March 2002.

76‘La responsabilite´ ci-dessus a lieu, a` moins que les pe`re et me`re et les artisans ne prouvent qu’ils n’ont pu empeˆcher le fait qui donne lieu a` cette responsabilite´.’ As amended by the loi of 5 April 1937.

77Civ 2, 12 October 1955 JCP 1955 II 9003 note P. Esmein; D 1956.301 note R. Rodie`re.

78‘Puisse cette charge de la responsabilite´ rendre les chefs de famille plus prudents et plus attentifs . . .

La vie que nos enfants tiennent de nous, n’est plus un bienfait, si nous ne les formons pas a` la vertu, et si nous n’en faisons pas de bons citoyens’: Treilhard, expose´ des motifs, se´ance du Corps Le´gislatif du 9 pluvioˆse an XII (30 January 1803).

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confined to tortious acts of the child, consistent with the primacy of fault and individual responsibility which lie at the heart of the 1804 Code.79

However, over time, the courts have moved from liability based on a presumption of fault to imposing strict liability on parents, without, it must be said, any fundamental change to the wording of the relevant provisions of the Civil Code. From the 1960s, one notes a willingness in the courts to favour the interests of victims over the strict requirements of fault.80 This goes far beyond the tendency of the German and, especially, the Spanish courts to impose increasingly onerous standards of care of parents to avoid liability. Criticism was, in particular, directed at the application of the faute de surveillance ou d’e´ducation test from which it was extremely difficult to discern any consistent approach.81

Three particular cases mark the development of the current strict liability rule: the Fullenwarth decision of 1984,82 the Bertrand decision of 199783 and the decision of the Assemble´e Ple´nie`re in 2002.84 In all three cases, the court chose to adopt an approach which diminished the relevance of fault in favour of comprehensive protection for victims.

In the Fullenwarth decision of the Assemble´e Ple´nie`re, Pascal, a seven- year-old boy, injured his friend whilst playing with a bow and arrow. The court found his parents liable under Article 1384(4), despite the fact that it had not been shown that Pascal had appreciated that his act was wrongful. In finding a ‘presumption of liability’ – a very different phrase from ‘presumption of fault’ which the courts had previously used – the court stated:

79See Article 1382: ‘Any act which causes harm to another obliges the person whose fault caused the harm to make reparation.’

80See G. Viney and P. Jourdain, Traite´ de droit civil: les conditions de la responsabilite´, 3rd edn (Paris: LGDJ, 2006), N 870.

81See, for example, A. Tunc, ‘L’enfant et la balle’, JCP 1966 I 1983.

82Ass ple´n 9 May 1984 (2nd case) D 1984.525 concl J. Cabannes, note F. Chabas, (1st case) JCP 1984 II 20255 note N. Dejean de la Baˆtie.

83Civ 2, 19 February 1997 Bull civ II N 56 p. 32; JCP 1997 II 22848 concl R. Kessous, note G. Viney, D 1997.265 note P. Jourdain, chron 297 par Ch. Rade´ (giving a strong defence of the judgment) and Somm 290 obs D. Mazeaud; [1997] Resp civ et assur, chron 9 par F. Leduc; [1997] Gaz Pal 2 572 note F. Chabas; RTD civ. 1997.648 obs J. Hauser and 668 obs P. Jourdain.

84Cass Ass Ple´n 13 December 2002 Bull Ass ple´n N 4, p. 7; JCP 2003 II 10010 note A. HervioLelong; D 2003 Jur 231 note P. Jourdain; Droit et Patrimoine February 2003 obs F. Chabas.

. . . for the liability of the father and mother of a minor who is living with them to be presumed, on the basis of Article 1384(4) of the Code civil, it is sufficient that the latter has committed an act which is the direct cause of the damage suffered by the victim.85

No mention is made of fault in this statement. The presumption of liability arises on establishing a direct causal link between the injury suffered by the victim and the act of the child. Subsequent courts exhibited some disquiet at this apparent movement away from faultbased liability. Dejean de la Baˆtie, in his note to the case, questioned whether this was in fact the intention of the court. Nevertheless, the Supreme Court in 2001 confirmed the new approach: proof of the capacity of the child to appreciate the wrongful nature of his act would not be required.86

The Bertrand case of 1997 took a further step away from fault-based liability: liability on the parent would be strict. In the case itself, Se´bastien, aged twelve, had collided with a moped whilst cycling onto a main road. The father argued that the Bordeaux Court of Appeal had been wrong in failing to consider whether he could show that the accident was not due to any fault on his behalf. The Supreme Court disagreed. The question of fault was irrelevant. In the absence of force majeure or contributory negligence, the parent would be held strictly liable. No other excuse would suffice.

The implications of this decision are profound. Parents will be liable for their children during the age of minority, that is, up to the age of 18.87 Only if they can show that an external, unforeseeable and unavoidable event occurred (force majeure)88 or that the victim himself

85The first decision of the Assemble´e ple´nie`re (l’affaire Gabillet) goes even further – a three- year-old child is found to have custody of a stick such that he may be found liable under Article 1384(1), Civil code, when the stick struck his playmate in the eye: see Ass ple´n 9 May 1984 (1st case) JCP 1984 II 20255 note N. Dejean de la Baˆtie. Article 1384(1) provides that ‘A person is liable not only for the damages he causes by his own act, but also for that which is caused by the acts of persons for whom he is responsible, or by things which are in his custody.’

86See Civ 2, 10 May 2001 (Levert) Bull civ II N 96; D 2001 Jur 2851 rapp P. Guerder, note

O.Tournafond; JCP 2001 II 10613 note J. Mouly; D 2002 somm 1315 obs D. Mazeaud; JCP 2002 I 124 N 20 obs G. Viney; RTD civ. 2001.601 note P. Jourdain.

87Parental authority may also be terminated by emancipation of the child: Art. 371–1, Code civil.

88Which the courts have interpreted strictly: see the classic case of Ste´ Aube-Cristal (Civ 2, 2 December 1998) Bull civ II N 292, p. 176; D 1999 IR 29; JCP 1999 II 10165 note

M.Josselin-Gall; RTD civ. 1999.410 obs P. Jourdain (child accompanied by mother

216 p a r e n t a l l i a b i l i t y f o r t o r t s o f t h e i r c h i l d r e n

was at fault,89 will liability be avoided. Evidence of excellent childcare or supervision will be ignored. Liability is strict.

Under the amended Article 1384(4), however, liability will only be imposed on those exercising ‘parental authority’90 – a phrase which signifies recognition of the diversity of modern parenting. On this basis, one of the corollaries of ‘parental authority’ is strict liability. This applies whenever such authority is being exercised. However, if, on divorce, only one party is given parental authority, the other parent will no longer be liable under Article 1384(4), even if the damage is caused by the child during a trip to visit the other parent.91 Equally, where the child is placed in a home or with foster parents as a result of a court decision, the parents will no longer be deemed to exercise parental authority.

Parental authority does not end, however, when the child engages in activities outside the home. In the decision of the Assemble´e Ple´nie`re in 2002, the fact that the child was in school under the supervision of a schoolteacher made no difference: parental authority continued and the father thus remained strictly liable for an accident caused by his son, Gre´gory, despite the fact that it took place during a physical education lesson.92 Here, the court took the opportunity to reinforce the test established by the second chamber of the French Supreme Court: only force majeure or contributory negligence can exonerate from liability parents exercising parental control over a minor living with them.93 This has led a number of commentators to question the relevance of the additional condition for parental liability: that the child ‘lives’ with his parents when the incident takes place.94 Article 1384(4) states that ‘The father and mother . . . are jointly and severally liable for the damage caused by their

slipping in shop for no known reason and knocking over a display cabinet did not amount to force majeure).

89See Civ 2, 29 April 2004 Bull civ 2004 II N 202 p. 170; D 2004 IR 1429. Note that this does not include third party contributory negligence which is usually a defence to strict liability in French law.

90See Art. 372, Code civil (inserted by loi N 2002–305 of 4 March 2002).

91See l’arreˆt SAMDA (Civ 2, 19 February 1997) Bull civ 1997 II N 55; Gaz Pal 1997, 2, 575 note F. Chabas; JCP 1997 IV 834; RTD civ. 1997.670 obs P. Jourdain.

92See also Civ 2, 3 July 2003 Bull civ 2003 II N 230 p. 191; JCP 2003 II 10009 note

R. Desgorces (schoolboy injuring friend in play-fight organised and supervised by PE teacher). An alternative action can be brought against the schoolteacher, but will require proof of fault.

93Note also the second case here: liability for accident which occurred during an improvised game of rugby.

94See M. Fabre-Magnan, Les obligations (Paris: PUF, 2004), p. 324. Viney argues at N 876 that the condition should be removed, but this would require legislative intervention due to the wording of Article 1384(4): see Viney and Jourdain Traite´ de droit civil.